NUTBEHARI DAS Vs. NANILAL DAS

JUDGEMENT

(1.) THIS appeal arises out of a partition suit between members of a Bengali family governed by the Dayabhaga. The contest is between uncle and nephewsthat is between the appellant Nutbehari, who was the first defendant in the suit, and the three respondents, sons of his deceased brother Haridas, viz., Nanilal (the plaintiff), Manmatha (second defendant) and Nagendra Nath (third defendant). These three brothers make common cause against Nutbehari. As McNair J. has noticed : The real protagonists are Nutbehari and his nephew Manmatha Nath, who are 1937 admittedly contractors in a large way of business. Manmatha, although he is not the plaintiff, admits that he is financing the suit.

(2.) THE trial Judge (Subordinate Judge, 4th Court, 24 Parganas) dismissed the suit save as regards a small plot of land measuring about three bighas and four cottas, upon which the family had been living : this land, but not the house built thereon, he treated as joint property of the parties, though he refused to divide it by metes and bounds. By way of partition he directed that it Rankin should be valued and that on the uncle, Nutbehari, paying one-half of the value for division between the nephews, he should retain the whole of the land for himself. THE High Court at Calcutta (Mitter and McNair JJ.) reversed this decision and gave decree for partition of a large number of immoveable properties and moveables, as well as of a grocery business or modi shop. In agreement, however, with the trial Court the High Court dismissed the claim for partition so far as regards two contract businesses and a money-lending business. It also dismissed the claim for accounts.

(3.) MITTER J. puts the argument by saying : That defendant No. 1 blended the earnings of defendant No. 2 out of his business with his own separate account and the effect of such blending was to cause the income from the two businesses to become joint to the extent that any immoveable properties which were purchased from such mixed fund was meant to be joint property of both brothers Nutbehari and Haridas.